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Commission Tackles Complex Pretrial Issues in 9/11 Case

By Donna MilesAmerican Forces Press Service

FORT MEADE, Md., Jan. 31, 2013  The judge presiding over pretrial hearings for five defendants charged with orchestrating the 9/11 terrorist attacks ruled today at Naval Station Guantanamo Bay, Cuba, that only he will have the authority to block audio feeds believed to contain classified information.

Army Col. James Pohl, wrapping up the latest round of hearings for Khalid Sheikh Mohammed, the self-proclaimed mastermind behind the attacks, and four co-defendants admonished the unnamed "original classification authority" that had activated a censor button in the courtroom earlier this week.

The button sets off a flashing warning light and blocks the audio for anyone observing the proceedings via closed-circuit TV, as well as media who sit behind soundproof glass in the courtroom.

The Jan. 28 incident caught Pohl and others by surprise, and he subsequently ordered that information disclosed during about two minutes of static be admitted to the court record. He also ordered the government to disconnect technology that enables anyone but him and his security officer to activate the mute button.

“This is the last time an [original classification authority] or any third party can decide if it can be unilaterally decided,” Pohl decreed. “The pubic has no unfettered right to access classified information. However, the only person who is authorized to close the courtroom is the judge.”

Activation of the warning light prompted the defense team to question who may be listening in on and presumably censoring the proceedings, as well as their confidential discussions with their clients. David Nevin, Mohammed’s lead defense attorney, submitted an emergency motion to halt the proceedings until the matter is resolved.

He expressed concern that confidential discussions between the defense team and defendants could be jeopardized. During a news conference following today’s proceedings, Nevin, as an example of his concern, questioned why guards at the detention facility ask what language defense attorneys will use during meetings with their clients.

Army Brig. Gen. Mark Martins, chief prosecutor for the Office of Military Commissions, explained during the news conference that court feeds are used by court reporters to provide accurate records of the proceedings.

“The prosecution never listens to any confidential communications between the accused and their counsel,” he said in a statement. “To do so would be a blatant violation of our professional responsibilities and our oaths to serve justice and would also implicate the court reporters in a breach of their oaths and neutral responsibilities. And let me be clear that there has never been any substantive or credible allegation that the prosecution listens to such conversations.”

Navy Cmdr. Walter Ruiz, one of the defense attorneys, called the “invisible hand” that activated the mute button emblematic of the flawed commission system. Ruiz called it a “counterfeit system” that defies America’s values, ideals and legal principles.

Much of the week’s hearing -- which ran Jan. 28 and 29, recessed during Jan. 30 and wrapped up today -- involved complicated legal issues regarding procedures for the government to provide classified information to the defense team. Before receiving it, the defense must sign a memorandum of understanding agreeing to how that information will be handled.

The defense team also objected to requirements that they submit information about their witnesses in advance, telling Pohl it will disadvantage their cases by giving the prosecution advance notice of the approach they are taking.

Pohl acknowledged that nobody wants “trial by surprise,” but ruled that the defense must articulate why they want any particular witness to testify.

In an unusual twist during this week’s hearing, the defense attorneys asked Pohl to allow them to spend two nights in Camp 7, where the defendants are detained. They told the judge they hope to get a better sense of the conditions their clients are living under. Pohl did not rule on the request.

In addition to Mohammed, the other defendants are Walid Muhammad Salih Mubarak Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al Hawsawi. All five defendants were captured in Pakistan in 2002 and 2003 and have been confined at Guantanamo Bay since 2006.

They were charged during their arraignment in May 2012 with terrorism, conspiracy, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, murder in violation of the law of war, destruction of property in violation of the law of war, hijacking or hazarding a vessel or aircraft.

The prosecution has since requested that the conspiracy charge be dropped.

Exercising a right clarified earlier this week, all of the defendants opted to skip today’s court proceedings. Pohl ruled, however, that they must attend the opening day of their next pretrial hearing Feb. 11.

A trial date has not been set. “Jury selection will take many months,” as will the trial itself, Martins told reporters today. That’s to be expected in complex criminal prosecutions, “particularly one with this much at stake,” he added.

Defense attorney James Connell condemned what he called an uncharacteristically long and cumbersome commission process. He complained to reporters that this week’s pretrial hearings, and those before them, had consumed “so much time and so much money,” while “accomplishing so little.”

Nevin defended the defense team’s challenges to the commission system. Doing so, he said, ensures the process remains true to the spirit of U.S. law, seeks to “honor, rather than disrespect” the memory of those killed in the 9/11 attacks.

Family members who lost loved ones during 9/11 were mixed in their impressions of the system. Phyllis Rodriguez, who lost her son Greg on 9/11, told reporters that the case should be tried in U.S. federal court. This would make the process more open and transparent and allow more Americans to see the process, she said.

Rodriguez added that she opposes the death penalty and doesn’t want any of the defendants to receive it.

Matthew Selitto, whose son Matthew was killed on 9/11, disagreed, calling Guantanamo Bay the appropriate venue for the commissions. Selitto told reporters he believes the defendants are getting a fair shot at justice. “There are not too many countries in the world today where they would get the chances they are being given,” he said.

His wife, Loreen Selitto, said delays in the commission process are hurtful to families. She urged the legal teams to “do your jobs” and “get justice moving.”

She said she felt pride seeing the men and women who serve at Guantanamo Bay. It demonstrated “the strength of my country and all you do to serve us,” she said.